Friday, January 30, 2009

01/30/09 SF Chronicle: "Proposition 8 proponents' complaint that a California campaign-finance disclosure law has led to harassment of same-sex marriage opponents failed to sway a federal judge, who refused Thursday (1/29/09) to throw out the law or shield donors' names."

Wednesday, January 28, 2009

01/27/09 San Francisco Daily Journal [subscription required]: M. Katherine Baird Darmer is a Chapman University law professor who recently filed an amicus brief to invalidate Prop. 8. In this opinion article, she contends that Prop. 8, if upheld, would require California public employees who oppose it to "take an oath to a new Constitution that embodies discrimination." Gay and lesbian employees would be "forced to swear to uphold a Constitution that has enshrined second-class citizenship for themselves into the very fabric of the document that they are asked to support."

Tuesday, January 27, 2009

01/26/09 Towerload.com: "Towleroad correspondent Brad Willis, who filed a report earlier today from Saturday's 'Equality Summit' in Los Angeles, sat down with Kate Kendell, executive director of the National Center for Lesbian Rights, to discuss Proposition 8, Obama's civil rights agenda, and moving forward in the campaign for marriage equality."

Kendell had this to say about California Supreme Court Justice Joyce Kennard, who voted to deny review of the Prop. 8 litigation except on the question of retroactive application:

"The vote that the Court took where Kennard was a lone voice was a petition asking the Court to take the case to review the validity of Prop 8. Kennard voted not to hear the case, meaning 'Go back to the trial court and start over again if you want to challenge Prop 8.' What does Kennard mean by that, because Kennard was one of the four votes voting to end the exclusion of same sex couples from the right to marry and to hold us to be a suspect class? I think it’s a perilous endeavor to try and ﬁgure out what votes like that might mean."

Monday, January 26, 2009

1/23/09 Sacramento Bee: This opinion article is by Peter Scheer, a lawyer and journalist, is the executive director of the California First Amendment Coalition. He contends that by reversing his position on Prop. 8, California Attorney General Jerry Brown has failed a fundamental (and quite objectionable) test of the Attorney General's duty. Brown has a duty "to defend California's laws unless they are so plainly invalid that no plausible defense can be offered." But Prop. 8 "is not legally indefensible." In fact, Brown's argument against Prop. 8 represents a "political gambit" that "creates doubts about the fairness of the [California] Supreme Court proceeding, and provides an opening for Proposition 8 supporters to argue that the case has been transformed from a legal to a political contest in which victory goes to the most powerful interest groups." Scheer believes that, under the 14th Amendment's equal protection clause, the Court may overturn Prop. 8 "without compromising its legitimacy."

01/26/09 SF Chronicle: Reporter Bob Egelko summarizes arguments that have been made in briefs by parties and amicus briefs. Former Chief Justice Malcom Lucas said that briefs (including amicus briefs) can show the California Supreme Court the range and importance of public opinion. He reprised a saying by Justice Stanley Mosk - that "we should take wisdom from wherever it comes." But Dennis Maio, a former research attorney for Justice Mosk, said that "the issues are framed by the parties," not by filers of amicus briefs.

01/26/09 The Recorder and 1/26/09 Daily Journal [subscription required]: The California State Bar's Board of Governors has decided not to act on the Beverly Hills Bar Association's request to change the venue of the State Bar's meeting in September. The meeting will take place at at the Manchester Grand Hyatt in San Diego. Doug Manchester, owner of Manchester Financial Group, gave the Prop. 8 campaign $125,000. In a letter to State Bar President Holly Fujie, Beverly Hills Bar Association President Nancy Knupfer objected that the meeting "will be held at a location whose ownership — despite supporting the repudiation of basic human rights — would profit from our members."

Lawrence Yee, the State Bar's acting general counsel, and Fujie have determined that Keller v. State Bar of California , 496 U.S. 1, would raise an unacceptable risk of litigation if the State Bar acted on the Beverly Hills Bar Association's request. The Keller Court barred use of membership dues to fund political or ideological activities. According to The Recorder, Yee said that "Proposition 8 is a fairly political issue." And Fujie told the Daily Journal that "the State Bar is not allowed to take any political action. We know that if we took action to move the State Bar meeting, it would result in a lawsuit for sure."

In July 2008, Californians Against Hate called for a boycott of the Manchester Grand Hyatt (and other Manchester hotels) to protest Manchester's contribution. But well before then, in 2004, the State Bar selected the Hyatt for its 2009 meeting. The State Bar has a $500,000 cancellation fee. "If we were to cancel and paid [Manchester] $500,000, he makes more money," Fujie said, "because he'd have the cancellation fee and what he can rent the rooms out for. We line the pockets of this gentleman."

The State Bar also booked the Manchester Grand Hyatt for the annual meeting of the Conference of Delegates of California Bar Associations, which has planned to share the venue with the State Bar. According to executive director Laura Goldin, the Conference's board will consider its options on February 7th. "Our decision will have to include a review of the legal implications of any step we might or might not be able to take," Golden told the Daily Journal. "We might not be able to do anything," despite the Conference's resolution that Prop. 8 is unconstitutional.

Friday, January 23, 2009

1/23/09 Alliance Defense Fund press release: "Alliance Defense Fund Senior Counsel Jordan Lorence will join a panel discussion Monday [01/26/09] with three other legal scholars at the Georgetown University Law Center over the issue of same-sex “marriage” and its effects on religious freedom in America ... The panel discussion will focus on the question of whether recognition of same-sex couples through civil marriage or civil unions places inappropriate burdens on religious liberty, and if so, how such burdens should be addressed."Georgetown University Law Center Moral Values Project: Check here for forthcoming multimedia coverage of the panel discussion.

1/21/09 Gay News Blog: "In the last round of an expedited briefing schedule, final briefs were filed today by both petitioners and respondents in the lawsuits challenging Proposition 8. The briefs filed today by the National Center for Lesbian Rights, Lambda Legal, and the ACLU responded to the more than 60 amicus curiae, or 'friend of the court,' briefs filed in the case last week."

Tuesday, January 20, 2009

01/18/09 NY Times: James Bopp Jr., a lawyer from Indiana, filed a federal lawsuit on behalf of Protect Marriage to challenge donor disclosures under California campaign finance law. (The Alliance Defense Fund is also involved in the case.) He claims that Prop. 8's financial supporters can not be identified without violating their First Amendment rights: “The highest value in the First Amendment is speech, and some amorphous idea about transparency cannot be used to subvert those rights.” He alleges that disclosures have resulted in "“death threats, acts of domestic terrorism, physical violence, threats of physical violence, vandalism of personal property, harassing phone calls, harassing e-mails, blacklisting and boycotts."

01/19/09 Sacramento Bee: "Senate Resolution 7 and House Resolution 5 would make it official state policy that Proposition 8 was an invalid revision to the California Constitution. It would also set forth that any change to the constitution that would eliminate a fundamental right from a minority group must be passed by the Legislature before being placed on the ballot." The Sacramento Bee also reports that "Assembly Bill 103 by Assemblyman Kevin de León, D-Los Angeles, would allow two people, including same-sex couples, who co-own a home to avoid having their property tax reassessed and raised when one dies."

Friday, January 16, 2009

01/18/09 CBS5.com: "The court's docket as of Friday evening showed that 60 friend-of-the-court briefs had been filed by the Jan. 15 deadline, including 17 supporting Proposition 8 and 43 arguing it should be overturned."

"Civil rights groups today filed an amicus brief with the California Supreme Court to invalidate Proposition 8 because it would mandate discrimination against a minority group and did not follow the process required for fundamental revisions to the California Constitution. "

01/15/09 Equal Justice Society press release: "The Equal Justice Society joined other civil rights groups today in filing an amicus brief with the California Supreme Court to invalidate Proposition 8 because it would mandate discrimination against a minority group and did not follow the process required for fundamental revisions to the California Constitution."

01/14/09 Sacramento Bee: "On Tuesday [01/13/09], almost every big union in California filed a legal brief that urged the state Supreme Court to invalidate Proposition 8."

01/15/09 San Diego Gay and Lesbian Times: "This is a very significant brief from California’s labor unions,” said Shannon Price Minter, legal director of the National Center for Lesbian Rights (NCLR). “These unions represent more than two million working men and women in California. They have many members who are gay, lesbian, bisexual and transgender, and they support the rights of all their members to be treated fairly and equally under the California Constitution.”

“In America, we respect the results of fair elections,” said ADF Senior Counsel Brian Raum. “The will of the people expressed in Proposition 8, which restored the definition of marriage to the California Constitution, should be respected. The constitution itself makes it clear that the people have this authority.”

“The lawsuits against the amendment should be seen for what they are: ongoing efforts by activists to redefine marriage, which is precisely what the voters of California have expressed they don’t want,” Raum said.01/13/09 Pacific Justice Institute press release: "PJI Chief Counsel Kevin Snider, principal author of the brief, commented, 'It is simply inaccurate to say that reaffirming the traditional definition of marriage singles out homosexuals for exclusion. Even the radical re-definition of marriage currently sought by gay activists maintains exclusions based on such factors as age and monogamy. It is hypocritical for them to pretend they are the only group affected by Prop. 8.'"

01/15/09 Washington Post: Borrowing, without attribution, from Kenneth Starr, columnist George Will claims that "[California Attorney General Brown's audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony." (Will mentions Starr's brief later in his column.)

Friday, January 9, 2009

"Sacramento – Acting on behalf of hundreds of supporters of Proposition 8 who have experienced various acts of harassment including death threats at the hands of opponents, the ProtectMarriage.com – Yes on 8 committee today filed a challenge in US federal court to the constitutionality of California’s campaign finance laws that compel disclosure of personal information of Prop 8 donors."

"'This trashes the 1st Amendment, and it is a thinly veiled attempt to eliminate transparency as to the role of money in state election campaigns,' said Mark Rosenbaum, legal director of the ACLU of Southern California. The ACLU was a major opponent of Proposition 8."

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Wednesday, January 7, 2009

David Llewellyn is the author of this opinion article. He is a visiting law professor at Chapman University, and he was the founder, president and senior legal counsel for the Western Center for Law and Religious Freedom. (According to one report, this organization represented antiabortion group Operation Rescue; according to another report, it "filed a brief defending a local school district for banning Gabriel Garcéa Marquéz's novel, "One Hundred Years of Solitude.")

Llewellyn argues that if the California Supreme Court overturns Prop. 8, it would flout the will of the electorate, when it has the following reasons to uphold it:

2. The Court does not have authority under Cal. Const. Art. 6 to invalidate Prop.8, because it can not use one provision of the Constitution to invalidate another.

3. Prop. 8 does not represent an unconstitutional revision. In People v. Frierson, 25 Cal. 3d. 142 (1979), the Court rejected an analogous, "revision" challenge to Prop. 17 (1972), restoring the death penalty, and the analogy is compelling.

4. The federal Defense of Marriage Act preempts the claims of the petitions in the Prop. 8 litigation.

5. The Court would violate the 14th Amendment guarantee of due process by invalidating Prop. 8. Due process requires the Court to give a "fair reading" of the California Constitution, but no such reading is available that would invalidate Prop. 8. Even if the Court "labeled," as "inalienable," the right to marry, that would remain subject to "legal modification."

Tuesday, January 6, 2009

01/05/09 ACLU press release: " San Francisco—The National Center for Lesbian Rights, the American Civil Liberties Union, and Lambda Legal filed a reply brief on Jan. 5 in the California Supreme Court, the next step in the lawsuit seeking to overturn Proposition 8."

Shannon Minter, the lawyer for the National Center for Lesbian Rights, said his team's legal position nevertheless has the same "core principles" as Brown's.

"To be candid, we hadn't thought of framing it in this way," he said of Brown's approach. "But when I read the argument, I was immediately persuaded."

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

01/05/09 SF City Attorney Press Release: "City Attorney Dennis Herrera today filed a reply brief that sharply challenges arguments by lawyers for the Proposition 8 political campaign that even the slimmest of electoral majorities in California may enact discriminatory amendments to the state constitution that would render meaningless such foundational principles as equality, inalienable rights and judicial independence." Amy Margolin, an appellate practitioner at Howard Rice, summarizes the argument against retroactive application of Prop. 8 if the Court upholds it.

01/06/09 The Recorder and 01/06/09 San Francisco Daily Journal (subscription required): In their brief on behalf of the Yes on 8 Campaign, Kenneth Starr and Andrew Pugno claim that "[t]he attorney general is inviting [the California Supreme] court to declare a constitutional revolution," based on an "extra-constitutional vision" that is "utterly without foundation" in California case law. If the Court can prevent voters from abridging fundamental, constitutional rights without compelling justification, then the Court would become "a judicial oligarchy," arrogating to itself "a sweeping power vested in the least-democratic branch that overrides the precious right of the people to determine how they will be governed ... The creation of such a judicial oligarchy would constitute a profound revision of the California Constitution."

Santa Clara University Law professor Gerald Uelmen, an expert on the state high court, said [the brief] "hits the nail on the head."

"If you think of the Constitution as a compact between the people and those who govern us, to say the people have no power to amend a court's ruling simply because the court . . . says this is an inalienable right -- I think that is pretty far out."

01/06/09 SF Chronicle: "If the (initiative) process is done correctly, once the Constitution is changed, that's the document the judges work from," Pugno said in an interview. "This would put the court above the reach of the people when it came to amending the Constitution."

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Monday, January 5, 2009

01/05/09 National Law Journal Pro Bono Awards: The National Law Journal honors Howard Rice appellate practitioners Bobbie Wilson and Amy Margolin for their pro bono service to San Francisco in In re Marriage Cases and the Prop. 8. litigation. This article also mentions O'Melveny San Francisco partner Peter Obstler for his work on an amicus brief, arguing that "the marriage ban violated the 14th Amendment's equal protection clause."

01/03/08: The Sacramento Bee joins the San Francisco Chronicle in supporting California Attorney General Brown for his argument that proponents of Proposition 8 lack a compelling justification to deprive individuals of the fundamental right to marry. Like the Chronicle, the Bee favorably compares Brown's action with that of his predecessor, California Attorney General Thomas Lynch, who filed a brief in Reitman v. Mulkey, 64 Cal. 2d 529 (1966), aff'd387 U.S. 369 (1967), challenging a measure voters adopted in 1964 to repeal a fair housing law and to ban fair housing laws.

01/05/09 Sacramento Bee: "Those basic guarantees of liberty [under Cal. Const. Art. 1, Sec. 1] mean something special," Brown said in an interview. "That certainly requires that they not be stripped away like any other state rule or statute."

Sunday, January 4, 2009

1/2/09 Findlaw's Writ: This is the fourth article in a multi-part series on the legal challenges to Prop. 8. Vikram Amar and Alan Brownstein, UC Davis Law Professors and constitutional scholars, find that

"[t]he Attorney General's is not an argument within the 'box' of state constitutional case law. Rather, it is an invitation to the [California Supreme] court to step outside of the box entirely and ask some foundational questions about the purpose and meaning of a state constitution."

If a constitution should protect a minority from the "tyranny of the majority," then California's constitution should provide a more rigorous standard of amendment. Amar and Brownstein believe that strengthening the amendment process need not compromise the popular sovereignity basis of California's constitution. "[T]here is a lot of room for experimentation."